NO. 90-427
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
ROBERT G. KIZER,
Plaintiff and Respondent,
SEMITOOL, INC. ,
a Montana Corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Debra D. Parker and Steven E. Cummings (argued),
Dana L Christensen; Murphy, Robinson, Heckathorn &
Phillips, P.C., Kalispell, Montana
For Respondent:
Daniel W. Hileman (argued); Murray & Kaufman,
Kalispell, Montana
Randall S. Ogle; Ogle & Worm, Kalispell, Montana
submitted: June 18, 1991
Decided: December 16, 1991
Filed:
DEC 1 6 '1991
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, Semitool, Inc. (Semitool), appeals from a
judgment entered on a jury verdict rendered in the District Court
of the Eleventh Judicial District, Flathead County, in favor of the
plaintiff, Robert G. Kizer (Kizer). Kizer filed suit in the
District Court seeking to recover damages from Semitool based on
three claims: wrongful discharge, breach of the implied covenant of
good faith and fair dealing, and negligence. The jury, through the
use of a general verdict form, awarded Kizer damages in the amount
of $51,000. We reverse and remand.
The issues are:
1. Was Semitool's notice of appeal timely filed?
2. Did the District Court err in allowing Kizer's expert
witness to render legal conclusions that Semitool breached the
implied covenant of good faith and fair dealing and that semitoolts
reduction in force was not legitimate?
3. Did the District Court err in instructing the jury on the
issue of negligence?
4. Was there sufficient evidence to support the submission of
Kizerts case to the jury?
Semitool is a manufacturer of specialized capital equipment
for the semiconductor industry. Its plant and principal offices
have been located near Kalispell, Montana since 1979. Semitool is
a closely-held corporation with Raymon and Ladeine Thompson as its
principal shareholders. Raymon Thompson also serves as president.
The semiconductor industry is highly cyclical and intensely
competitive; technology is continuously changing. Semitool's
success is directly related to its ability to produce a state-of-
the-art product and respond to the fluctuating demands of its
customers. Two important measures of customer demand and, thus,
Semitool's economic prospects are (1) sales booked (representing
orders received for products to be manufactured by Semitool and
delivered in the future); and (2) backlog (representing products
ordered by customers and in the process of being manufactured). In
the fall of 1986, Semitool suffered a significant down-turn in both
sales booked and backlog which continued through the spring of
1987. During this period, Semitool reduced its number of
employees. A total of thirty-five employees were terminated,
including Kizer. Testimony at trial indicated that when Semitool's
economic prospects improved after ~ p r i l1987, almost all of the
employees were rehired or their previous positions were filled by
new first-time employees.
Kizer was employed with Semitool for nearly four years. In
April 1983, he began working for Semitool as the supervisor of the
polypropylene department. He was promoted two months later to
supervisor of the polypropylene, welding, and electropolish
departments. By 1987, Kizer held the position of fabrications
manager, after having been given the additional responsibility of
supervising the machine shop at Semitool.
While employed by Semitool, Kizer received numerous verbal
evaluations of his job performance, all of which were favorable.
He also received one written performance evaluation which was
favorable to him. ~ i z e r did not receive any unsatisfactory
evaluations of his job performance.
On February 16, 1987, Kizer's employment with Semitool ended.
He was called into Thompson' s office that day and, without any
forewarning, told that his employment was terminated. According to
Kizerfs testimony, Thompson told him that he was being "let go1!
because the machine shop was operating at thirty percent less
efficiency than the previous year and because he was not a
journeyman machinist.
On February 2, 1988, Kizer filed suit in the District Court
seeking to recover damages from Semitool based on three claims:
wrongful discharge, breach of the implied covenant of good faith
and fair dealing, and negligence. The case was tried before a jury
March 26 through March 29, 1990. The jury, through the use of a
general verdict form, rendered a verdict in favor of Kizer and
awarded damages in the amount of $51,000. Following trial,
Semitool moved for judgment notwithstanding the verdict or, in the
alternative, a new trial. At a hearing held on April 26, 1990, the
District Court denied Semitool's post-trial motions. This appeal
followed.
I
Was Semitool's notice of appeal timely filed?
Kizer contends that Semitool's notice of appeal was not timely
filed and, therefore, its appeal should be dismissed. We disagree.
At the hearing on April 26, 1990, the District Court denied
Semitool's post-trial motions from the bench and the Clerk of the
District Court entered the court's denial into the record.
Pursuant to Rule 5(a)(4), M.R.App.P., allowing three days for
mailing, Semitool's thirty-day period in which to file its notice
of appeal expired on May 30, 1990. On May 31, 1990, Semitool filed
with the District Court a motion to extend the time of filing a
notice of appeal. The District Court granted the motion and
Semitool filed its notice of appeal on June 8, 1990.
Rule 5(a) ( 5 ) , M.R.App.P., allows the district court to extend
the time for filing a notice of appeal upon a showing of excusable
neglect or good cause. The request to extend the time for filing
a notice of appeal must be made within thirty days after the
initial thirty-day period for filing a notice of appeal has
expired. Here, Semitool filed its motion to extend the time for
filing a notice of appeal one day after the initial thirty-day
period had expired. Apparently, it was unclear to counsel for
Semitool whether the ~istrictCourt had denied Semitool's post-
trial motions from the bench or would be making a decision post-
hearing. Under these circumstances, the District Court found that
good cause existed to extend the time for filing a notice of
appeal. We hold that semitool's notice of appeal was timely filed.
I1
Did the District Court err in allowing Kizerls expert witness
to render legal conclusions that semitool breached the implied
covenant of good faith and fair dealing and that semitool's
reduction in force was not legitimate?
Alan Brown, an expert in employment relations, testified on
behalf of Kizer at trial. On direct examination, Kizerls counsel
established Brown's training and qualifications and knowledge of
the facts surrounding Kizerls termination of employment. Counsel
then elicited the following testimony from Brown:
Q. Did you formulate any opinions in this case?
A. Yes, I did.
Q. And what are those opinions?
A. My opinion is that Bob Kizer, the Plaintiff in
this case, was not treated fairly by the Defendant,
Semitool.
Q. What forms the basis for your opinion that
Semitool treated Mr. Kizer unfairly?
A. I guess there are five bases for my opinion.
The first of these bases is the fact that when you
compare the actions of Semitool, the Defendant in this
case, against widely accepted standards in the employee
relations field, you find that their actions weren't fair
and they weren't the actions that a company normally
takes when they have a reduction in force.
The second thing that I found was that in the past,
Semitool, when they have had reductions in force, have
done things differently and they have treated their
employees much better than they have treated Mr. Kizer.
The third point that I found was that the implied
covenant of good faith and fair dealing, which is found
in the employer relationship, was violated by the actions
of Semitool.
The fourth point that supports my opinion is the
fact that when an employer has performance problems with
an employee, they deal with those performance problems as
opposed to terminating or firing an employee for an
alleged reduction in force, when in reality, the problems
lay elsewhere in the materials that I reviewed. And in
my review with Mr. Kizer, I learned that in fact there
were some performance problems that had existed.
And the final point, or basis for my opinion, is
that the State of Montana, if you terminate an employee,
the Supreme Court has said that you must--
MR. CHRISTENSEN: Your Honor, I am going to object
to any testimony of what the Supreme Court says. That is
commenting on the law, and that is your bailiwick.
THE COURT: I appreciate that. On the other hand,
I think he is looking for standards to compare with. But
I would tell you not to use the Supreme Court decision.
If you have some knowledge of a standard, I would allow
that.
THE WITNESS: The standard in the State of Montana
is that an employer, when they terminate an employee,
must have a fair and honest reason for that termination.
And my review indicates to me that there was, in fact, no
fair and honest reason for this termination.
BY MR. OGLE:
Q. So, as I understand your answer to the last
question, then there are five different points that led
you to the conclusion that Mr. Kizer was not treated
fairly in the situation. Is that right?
A. Yes, that is correct.
Q. Letts discuss them one at a time, then. One of
your points was that the implied covenant of good faith
and fair dealing applied to this case. Is that right?
A. Yes, that is correct.
Q. Did you believe it was adhered to by Semitool
with regard to Bob Kizer?
MR. CHRISTENSEN: I will object to this as invading
the province of the jury. They decide this question.
They don't need this man telling them what he thinks they
should do.
THE COURT: Well, certainly the mere fact that it
goes to invading the province of the Jury does not
prohibit the testimony. I am not sure where we are
headed with this line. I have no problem to his setting
forth facts that he found that might indicate in his
opinion a violation of the covenant. But as to the
ultimate conclusion, I think that is a Jury question and
I will allow the Jury to resolve it.
BY MR. OGLE:
Q. I would rephrase the question, then, as to
whether or not you found any facts in this particular
case by the treatment of Mr. Kizer by Semitool from which
you can tell in your opinion whether or not Semitool
adhered to the implied covenant of good faith and fair
dealing.
MR. CHRISTENSEN: Same objection. Same question.
THE COURT: Overruled.
THE WITNESS: In my view, I don't believe that
Semitool did in fact adhere to the covenant. .. .
Q. Do you believe that the termination of Bob Kizer
by Semitool was in fact a legitimate reduction in force?
MR. CHRISTENSEN: Objection; goes to the ultimate
issue in the case, invades the province of the Jury and
isn't helpful to them.
MR. OGLE: I believe an expert witness has a right
to testify, Your Honor.
THE COURT: Again, as to allowing him to give his
opinions, I will allow it. I will remind the Jury the
ultimate decision is up to you folks, of course, but he
may give his opinion as an expert witness.
You will be instructed later on that; you can give
it such weight as you feel it entitled.
THE WITNESS: In my opinion, I don't feel it was a
legitimate reduction in force.
Semitool, citing Heltborg v. Modern Machinery (1990), 244
Mont. 24, 795 P.2d 954, contends that Brown's testimony constituted
improper legal conclusions on the issues of whether Semitool
breached the implied covenant of good faith and fair dealing and
whether its reduction of force was legitimate. It argues that
Brown's testimony amounted to instructing the jury on how to decide
the case. Kizer, on the other hand, contends that Brown's
testimony was admissible as opinions on ultimate issues of fact in
accordance with Rule 704, M.R.Evid. Kizer also contends that even
if Brown's testimony constituted legal conclusions, his testimony
was properly admitted by the ~istrictCourt because semitool did
not make a timely and specific objection or motion to strike as
required by Rule 103, M.R.Evid., and therefore, any objections to
the admission of Brown's testimony were waived.
In Heltborq, this Court considered testimony from this same
expert which was substantially similar to the testimony in the
present case. The defendant claimed that the plaintiff's
employment was terminated as part of a reduction in force for
economic reasons. The plaintiff asserted that the defendant
breached the covenant of good faith and fair dealing, was negligent
in its reduction in force, and that the reduction in force was not
legitimate.
In considering the expert testimony, we emphasized the
distinction under Rule 704, M.R.Evid., between testimony on the
ultimate factual issue, which is allowable, and testimony on the
ultimate legal issue, which is not allowable. Rule 704, M.R.Evid.,
states that "[tlestimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact." The Commission
Comments to Rule 704, M.R.Evid., state that "the Commission intends
this rule to follow the existing Montana practice of not allowing
the witness to give a legal conclusion or to apply the law to the
facts in his answer."
In discussing the propriety of expert legal testimony under
Rule 704, we cited our decision in Hart-Anderson v. Hauck (1988),
230 Mont. 63, 748 P.2d 937, which quoted approvingly from Marx &
Co., Inc. v. Diners1 Club, Inc. (2nd Cir. 1977), 550 F.2d 505,
cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977), as
follows:
"[Sluch testimony 'amounts to no more than an
expression of the [witness1]general belief as to how the
case should be decided.' ~ccormickon Evidence, 5 12 at
26-27. The admission of such testimony would give the
appearance that the court was shifting to witnesses the
responsibility to decide the case. McCormick on
Evidence, 5 12 at 27. It is for the jury to evaluate the
facts in the light of the applicable rules of law, and it
is therefore erroneous for a witness to state his opinion
on the law of the forum.I1
Heltborq, 244 Mont. at 31, 795 P.2d at 958.
We held that the expert's testimony in Heltborq was not
admissible, stating:
The testimony by Mr. Alan Brown constituted a legal
conclusion on the precise issue presented to the jury,
that is, whether defendant had breached the covenant of
good faith and fair dealing. Moreover, he was allowed to
state his opinion that defendant was negligent in
carrying out its reduction in force and that such
reduction was not legitimate; ...
Mr. Brown's testimony
was extensive, and he repeatedly stated legal conclusions
which amounted to instructing the jury on how to decide
the case.
Heltborq, 244 Mont. at 32, 795 P.2d at 958.
In light of our decision in Heltborq, we agree with Semitool
that Brown's testimony in the present case constituted legal
conclusions on the very issues to be decided by the jury and
exceeded the scope of allowable expert testimony under Rule 704,
M.R.Evid. Having so concluded, we must now consider whether
Semitool waived its objection to this evidence.
In order to preserve an objection to the admission of evidence
for purposes of appeal, the objecting party must make a timely
objection or motion to strike and state its specific grounds. The
objection must appear on the record. Rule 103, M.R.Evid. To be
timely, the objection must be made as soon as the ground for the
objection becomes apparent. McCormick on Evidence, (3rd. Ed.
1984), § 52 at p. 126. The objection is sufficiently specific if
it is accompanied by a reasonably definite statement of the grounds
for the objection. McCormick on Evidence, (3rd. Ed. 1984) , 5 52 at
p. 128. Failure to make such an objection constitutes a waiver of
the right to claim error on appeal. Moore v. Hardy (1988), 230
Mont. 158, 163, 748 P.2d 477, 481. The effect of waiver is that
the evidence is treated the same as any other admissible evidence.
Kizer asserts that the first objection made by Semitool to
Brown's testimony was made after Brown rendered his opinions that
Kizer's employment was not terminated as part of a legitimate
reduction in force and that Semitool violated the implied covenant
of good faith and fair dealing. He also asserts that the first
objection made by Semitool related only to "commenting on the law"
in response to Brown's testimony regarding what "the Supreme Court
has said,I1 rather than that counsel's question called for a legal
conclusion which invaded the province of the jury. Kizer argues
that Semitool's failure to make a timely and specific objection
constituted a waiver of the objection and rendered the opinions, as
well as the subsequent discussions regarding the opinions,
admissible.
Our review of the record indicates that Semitool properly
preserved its objection to Brown's testimony for purposes of
appeal. After Brown's training and qualifications and knowledge of
the facts surrounding Kizer's termination of employment were
established, Kizer's counsel asked Brown if he had formed any
opinions in this case. Brown responded that, in his opinion, Kizer
Itwas not treated fairly by the Defendant." He further testified
that there were five bases for his opinion. Bases one, two, and
four related to Kizer's termination of employment with respect to
a legitimate reduction in force. Basis three involved the implied
covenant and basis five involved what IftheSupreme Court has said"
which was objected to as gfcommentingon the law.I1 Immediately
thereafter, Kizer's counsel delved into these bases "one at a
time." It was during the discussion of these bases that counsel
first asked Brown to state his opinion of whether Semitool adhered
to the implied covenant of good faith and fair dealing. Semitool
objected to this question as "invading the province of the jury."
Thereafter, counsel also asked Brown for the first time if he
believed that the termination of Kizerts employment was a
legitimate reduction in force. semitool objected to this question
as going to the "ultimate issuew and l1invad[ing] the province of
the jury.
Under these circumstances we conclude that Brown's initial
testimony and the ensuing discussion, during which Semitool raised
its objections, occurred in sufficient proximity in time to render
Semitool's objections timely. We also conclude that ~emitool's
objections were sufficiently specific. This Court has previously
stated that expert legal opinions invade the province of the jury.
In Hart-Anderson v. Hauck (1988), 230 Mont. 63, 748 P.2d 937, the
plaintiff's expert witness testified, over objection, that the
defendant, State Farm Insurance Company, violated Subsections (4),
(6) and (7) of § 33-18-201, MCA, (Montana's Unfair Claims
Settlement Practices Act). In holding that the district court
committed reversible error in admittingthe testimony, we discussed
the propriety of legal opinions under Rule 704, M.R.Evid., and
stated that "[the expert's] challenged testimony, opining that
State Farm violated Subsections (4), (6) and (7) of the Act invaded
the province of the iurv and simply instructed the jury how to
decide the case." Hart-Anderson, 230 Mont. at 72, 748 P.2d at 943,
(emphasis added). Thus, Hart-Anderson, decided more than two years
prior to the trial in the instant case, not only limited the scope
of expert testimony but also set forth this Court's opinion that
expert legal opinions were objectionable precisely because they
invaded the province of the jury.
We hold that in the present case the District Court erred in
allowing Brown to render legal conclusions on the very issues to be
decided by the jury. We further hold that Semitool properly
objected to the admission of Brown's testimony. We thus reverse
and remand to the District Court for a new trial.
Notwithstanding our reversal, we will address the remaining
two issues raised by Semitool for the court's guidance on retrial.
I11
Did the District Court err in instructing the jury on the
issue of negligence?
The District Court gave the following negligence instructions
to the jury:
INSTRUCTION NO. 9
Every person is responsible for injury to the person
of another, caused by his or her negligence.
Negligence is the failure to use reasonable care.
Negligence may consist of action or inaction. A person
is negligent if he fails to act as an ordinarily careful
person would act under the circumstances.
INSTRUCTION NO. 10
Before you can find the defendant liable, you must
find the defendant's negligence was a cause of the
plaintiff's damage.
Citing Heltborq, Semitool contends that the court's
instructions improperly authorized the decide whether
Semitool was negligent in carrying out a reduction in force by
suggesting that the jury could second guess Semitool's management
decision in the context of what an I1ordinarily careful person"
would have done "under the circurn~tances.~~ also asserts that
It
the instructions improperly allowed the jury to find that Semitool
negligently breached the implied covenant of good faith and fair
dealing.
Heltborq distinguishable from the present case this
regard. In Heltborq the challenged jury instructions read as
follows:
No.
When the legal duty to act in good faith
exists in the employment relationship, as it
does in this case, then there is a duty
imposed upon the employer to exercise
reasonable care in carrying out decisions
concerning employment. This means that there
is a duty on the part of the employer to use
reasonable care under the circumstances in
carrying out its business decision-making.
Instruction No.
A reduction in force can constitute a just
cause for termination of employment. However,
you are instructed that the employer's right
to reduce its personnel does not excuse its
obligation to act fairly and in good faith or
to use ordinary and reasonable care in the
process and manner of termination of
employment.
Heltborq, 244 Mont. at 33-34, 795 P.2d at 959. In addition, a
special verdict form specifically directed the jury to consider
whether the defendant had negligently breached the implied covenant
of good faith and fair dealing.
We held that the district court improperly instructed the jury
on the issue of negligence, stating that the management decision to
implement a reduction in force for economic reasons is not
susceptible to a negligence analysis by a jury. Heltborq, 244
Mont. at 36, 795 P.2d at 961. We also held that a breach of the
implied covenant of good faith and fair dealing does not involve
negligent conduct, but rather involves intentional conduct.
Heltborq, 244 Mont. at 37, 795 P.2d at 962.
However, we did not hold in Heltborq that there can never be
a claim for negligence in the termination of the employer-employee
relationship. Indeed, in other wrongful termination cases arising,
as did the instant case, prior to the Wrongful isc charge From
Employment Act, this Court has recognized that negligence, as a
separate and distinct cause of action, can be a basis for recovery.
Flanigan v. Prudential Federal Savings & Loan (1986), 221 Mont.
419, 720 P.2d 257; Crenshaw v. Bozeman Deaconess Hospital (1984),
213 Mont. 488, 693 P.2d 487. We have held that an employer may be
liable for negligence in violating its own written employment
policies (Flaniqan) or for failing to make a proper investigation
before discharge (Crenshaw).
Here, Semitool's employee handbook was admitted into evidence.
Kizer presented evidence at trial that Semitool violated its own
employment policies and that it failed to make a proper
investigation prior to discharge regarding Thompson's assertion
that Kizer was not running the machine shop efficiently. Under
these circumstances, we conclude that the District Court did not
err in instructing the jury on the issue of negligence.
Was there sufficient evidence to support the submission of
Kizerrs case to the jury?
Semitool contends that it was imperative that Kizer offer some
specific motive or reason to contradict that he was laid off as
part of a reduction in force for economic reasons. It argues that,
having failed to do so, Kizer failed to rebut its claim that his
employment was terminated out of economic necessity.
In support of its argument, Semitool cites Cecil v. Cardinal
Drilling Co. (1990), 244 Mont. 405, 797 P.2d 232. In that case,
the district court granted summary judgment in favor of the
employer on the basis that there was no genuine issue of material
fact that the plaintiff's termination of employment was for other
than legitimate business reasons. In affirming summary judgment,
we stated that:
Here, Cecil did not offer any other motive or reason
for his termination. He merely denied that the reasons
were legitimate business reasons. And while the record
might arguably show that it was possible for Cardinal to
keep Cecil employed during the decline in oil prices,
this Court cannot speculate as to what Cardinal's real
reasons may have been, if they were in fact not as
claimed. Cecil has failed to meet his burden of raising
a material fact issue sufficient to withstand a motion
for summary judgment.
Cecil, 244 Mont. at 410, 797 P.2d at 235.
Cecil is factually distinguishable from the present case.
Cecil was governed by and decided under the Wrongful Discharge From
Employment Act, 8 8 39-2-901, et seq., MCA. Under the Act, an
employer may discharge for good cause an employee who has completed
the employer's probationary period of employment. Section 39-2-
904 (2), MCA. The Act defines good cause as I1reasonablejob-related
grounds for dismissal based on a failure to satisfactorily perform
job duties, disruption of the employerrs operation, or other
legitimate business reason.l1 Section 39-2-903 ( 5 ) , MCA. We
recognized that economic conditions constituted a legitimate
business reason or good cause for dismissal and held that the
employer had met its burden of demonstrating that there was no
genuine issue of material fact that the plaintiff was terminated
for other than legitimate business reasons. Although the plaintiff
asserted that he was not terminated for a legitimate business
reason, he failed to present any evidence to meet his burden of
raising a material fact issue. In other words, the plaintiff's
assertion that he was not terminated for legitimate business
reasons was nothing more than mere denial or speculation and was
insufficient to raise a genuine issue. Cecil, 244 Mont. at 409-10,
797 P.2d at 235.
On appeal from a jury verdict, the evidence in the case is
viewed in a light most favorable to the prevailing party. Sizemore
v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 629, 636.
In contrast to Cecil, the evidence presented at trial in this case
was sufficient to raise a reasonable jury issue as to whether
Semitool acted with other than purely economic motives when it
terminated Kizerrs employment. Although it is apparent that a
reduction in force for economic reasons did occur, the evidence is
such that the jury could legitimately infer that Kizerls
termination was not part of, or motivated by the need for, this
reduction in force.
Semitool asserts that Kizerfs termination was a result of its
pre-termination decision to eliminate his position in an effort to
reduce its overhead costs. Significantly, however, Kizer was not
told that his employment was being terminated as part of a company-
wide reduction in force for economic reasons until after he filed
the lawsuit against Semitool. According to Kizerls undisputed
testimony, Thompson told him on the day his employment was
terminated that he was being l1letgof1because the machine shop was
operating at thirty percent less efficiency than the previous year
and because he was not a I1journeymanmachinist." Thompson himself
testified that he terminated Kizerfs employment because of rising
costs in ~izer's areas of responsibility and because Kizer lacked
technical expertise at the machine shop level. Evidence at trial
indicated that Kizer was frequently promoted and that he never
received an unsatisfactory job performance evaluation while
employed with Semitool. In addition, the evidence established that
Kizer had issued memos to his supervisors offering suggestions on
how to increase efficiency in the machine shop, including the
suggestion to purchase a new lathe. Prior to Kizerls termination,
he suggestions were apparently not acted upon. However, shortly
after Kizerfs termination, Semitool purchased the lathe at a cost
of $86,000. In our view, the jury could have relied upon this
evidence and concluded that Kizer was not terminated for purely
18
economic reasons.
In addition, the evidence established that approximately
twenty-six people were laid off around the time of Kizerrs
termination. Of these twenty-six people, twenty-five were rehired
or their positions were refilled because the employees had found
other employment. The only person who was not rehired or whose
position was not refilled was Kizer. Semitool argues that Kizer's
management position was eliminated. However, semitool's
organizational charts showing management before and after Kizer's
termination were offered into evidence. The exhibits indicated
that prior to Kizer's termination there were ten management
positions; at the time of trial there were eleven people filling
the same areas of responsibility. Although Thompson testified that
other employees had changed positions within the company in the
past, he never discussed with Kizer the possibility of moving to
another position. He further testified that he never requested his
subordinates to keep Kizer in mind for job openings after his
termination because "that would have been stepping out of line.I'
Contrary to Thompson's testimony, Semitool's chief Financial
Officer, Larry Viano, testified that Kizer could have moved to
another position and that Semitool explored that possibility.
However, Viano testified that Semitool never discussed with Kizer
the possibility of his moving to another position.
We hold that sufficient evidence was presented to raise a
factual issue as to whether Semitool acted with other than purely
economic motives when it terminated Kizerrs employment. Thus, the
District Court properly submitted Kizer's case to the jury.
19
To summarize our holding in this case, the District Court did
not err in instructing the jury on the issue of negligence and
submitting the case to the jury. The court did err, however, in
allowing Kizer's expert witness to render legal conclusions that
Semitool breached the implied covenant of good faith and fair
dealing and that Semitool's reduction in force was not legitimate.
Having no way of determining to what degree Brown's testimony
influenced the jury's decision in this case, we cannot conclude
that this error was harmless. We therefore reverse and remand to
the District Court for a new trial.
Reversed and remanded.
We concur: /
Chief Justi
Justices
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with those parts of the majority's opinion which
uphold the timeliness of Semitool's notice of appeal, affirm the
District Court's instructions on the issue of negligence, and
conclude that there was sufficient evidence to submit the
plaintiff's case to the jury.
I dissent from that part of the majority's opinion which
concludes that there was a timely and appropriate objection to the
testimony of Alan Brown, and which reverses the verdict in favor of
the plaintiff on the basis of that objection.
In H l b r v Modem Machinery (1990), 244 Mont. 24, 795 P.2d 954,
etog .
we distinguished between expert opinions which express a factual
conclusion, and expert opinions which express a legal conclusion.
We held that the former were admissible even when they embrace an
ultimate issue of fact. Heltborg, 795 P.2d at 958. We held that
Brown could not express his opinion that defendant had breached the
covenant of good faith and fair dealing because that testimony
amounted to a legal conclusion. Heltborg, 795 P.2d at 959.
In this case, Brown expressed what we previously characterized
as a legal conclusion on three occasions. When first asked for his
general opinions in this case, he expressed the opinion that
plaintiff's termination was not a normal reduction in work force
and that it violated the implied covenant of good faith and fair
dealing. There was no objection to those opinions, nor any motion
to strike them. Later during that same answer the witness began to
discuss decisions of this Court. That testimony was objected to on
a proper basis and the witness was instructed to avoid discussing
the law. He completed his answer without further discussion of the
law.
Later in his testimony, he was asked specifically whether in
his opinion Semitool violated the covenant of good faith, and
whether their termination of the plaintiff was a legitimate
reduction in force. His answers to these questions are the basis
for the majority's reversal of the jury verdict in this case. The
majority concludes that his answers to these questions were
impermissible legal conclusions pursuant to our decision in Heltborg.
However, neither of these questions was objected to on that basis.
Both were objected to for the reason that they went to the ultimate
issue in the case and invaded the province of the jury.'
'prior to trial the defendant also filed a motion in limine to
exclude certain opinions of Brown. However, the basis stated in
that motion was not an appropriate basis for excluding the
testimony. The reason given was as follows:
[Flor the reason that said opinion is without adequate
foundation, invades the province of the trier of fact,
and is not helpful to the trier of fact in determining
the ultimate issue involved in this case, pursuant to
Rules 701 and 704, Montana Rules of Evidence.
Nowhere in the motion in limine did defendant state that Brown's
opinion was objectionable because it expressed a legal conclusion.
Pursuant to Rule 704, M.R.Evid., and our previous decision in
Heltborg, the fact that expert opinion testimony addresses the
ultimate issue in the case is not a basis for excluding it.
Rule 704 specifically provides:
Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of
fact.
We have discussed the adequacy of the kind of objection made
in this case previously. In State v. Howard (1981), 195 Mont. 400,
404, 637 P.2d 15, 17, we stated in language clearly relevant to
this case:
The objection made by defense counsel to the question
calling for the doctor's opinion on intent was that it
"invades the province of the jury. This objection is not
adequate to justiJL exclusion of the testimony. ~t is merely another
way of saying that the testimony embraces an ultimate
issue to be decided by the jury. Rule 704 of the Montana
Rules of Evidence provides:
"Testimony in the form of an opinion or
inference otherwise admissible is not
objectionable because it embraces an ultimate
issue to be decided by the trier of fact."
This rule reflects long-established law in Montana. State
V.Petko (1978), 177 Mont. 229, 581 P.2d 425; McGuire v. Nelson
(1975), 167 Mont. 188, 536 P.2d 768; Rude v. Neal (1974),
165 Mont. 520, 530 P.2d 428; State v. Campbell (1965), 146
Mont. 251, 405 P.2d 978; State v. Shannon (1933), 95 Mont.
280, 26 P.2d 360; Kelleyv. John R. Daily Co. (1919), 56 Mont.
63, 181 P. 326. Thus, the fact that the doctorlsopinion
on intent went to an ultimate issue is not a basis for
its exclusion. [Emphasis added.]
The fact that Brown's testimony was not objected to for an
appropriate reason is significant because Rule 103(a) (1),
M.R.Evid., provides as follows:
Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party
is affected, and
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if
the specific ground was not apparent from the context
By requiring that the specific ground for the objection be
stated, it is implicit from Rule 103 that the objection must
correctly state the reason for which the testimony objected to is
inadmissible.
Rule 103 is extremely important to attorney practitioners and
trial judges in the district courts. Its purpose is obvious. It
is simply not fair to reverse a verdict for either party based upon
error which was not brought to the attention of the district judge
and the other party. For one thing, the district judge should have
an opportunity to consider the objection in light of the proper
reason for the objection. The rule presumes that if he has that
opportunity he is more likely to make a correct ruling.
Just as importantly, the party offering the evidence should be
given the opportunity to consider whether the evidence was
inadmissible for a proper reason, and should have the option of
withdrawing the evidence or restating the question to avoid the
possibility of error. Neither the District Judge nor the
plaintiff's attorney were given that opportunity in this case
because the defendant's objection to the expert 's testimony did not
identify an appropriate basis for excluding the testimony.
In concluding that the defendant's objection was properly
stated in this case, the majority rationalizes that expert legal
opinions invade the province of the jury. However, the majority's
opinion demonstrates a lack of understanding about the division of
responsibility between juries and judges.
Juries arrive at factual conclusions, not legal conclusions.
Judges arrive at legal conclusions and instruct the jury on the
law. The only "province of the jury" was to resolve the facts in
this case. Rule 704 permits testimony from a qualified expert
regarding the ultimate factual issue. Therefore, an objection
which states that the plaintiff's question invades the ultimate
province of the jury does not state a proper basis for excluding
the expert testimony.
What the majority has done in this case is extremely unfair to
the trial court and the plaintiff and will create uncertainty in
all future trials because of the possibility that legal issues can
be raised and scrutinized on appeal that were never raised during
trial. No party can be assured that he or she prevailed based on
those issues that were addressed during the trial court
proceedings.
I conclude that there was not a proper objection to Brown's
testimony. For that reason, any objection was waived and the
verdict for the plaintiff should be affirmed.
We concur in the foregoing concurring and dissenting opinion
of Justice Trieweiler.